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Attorneys for Microsoft Corporation - page 41 / 74





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Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 249, 252-53 (5th Cir. 2005); see

Jurgens, 927 F.2d at 1557-58. In light of the jury’s implicit factual findings, Microsoft

has not established that the asserted claims would have been obvious.

B. Anticipation

For anticipation, the question is whether the district court erred in denying

Microsoft’s motion for post-verdict JMOL on invalidity, or alternatively a new trial, based

on the sale of S4 violating the on-sale bar. See 35 U.S.C. § 102(b).

S4 was a software program developed for a client called SEMI by i4i’s corporate

predecessor. i4i’s founder, Michel Vulpe, hired Stephen Owens to help develop S4,

which they delivered to SEMI in early 1993. S4 allowed the user to add and edit SGML

tags in electronic documents. For storage purposes, S4 divided the document into

“entities.” According to Vulpe and Owens, these entities were simply chunks of the

SGML document, where the SGML tags were intermixed with the content. Both Vulpe

and Owens testified that S4 did not create a “metacode map.”

At trial, Microsoft argued that the sale of S4 before the critical date violated the

on-sale bar. To prove invalidity by the on-sale bar, a challenger must show by clear and

convincing evidence that the claimed invention was “on sale in this country, more than

one year prior to the date of the application for patent in the United States.” Id.; Adenta

GmbH v. OrthoArm, Inc., 501 F.3d 1364, 1371 (Fed. Cir. 2007). It is uncontested that

S4 was sold in the United States before the critical date. At trial, the dispute was

whether S4 practiced the “metacode map” limitation of the ’449 patent.

Because the S4 source code was destroyed after the project with SEMI was

completed (years before this litigation began), the dispute turned largely on the



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